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Week 2 Notes

by: Nicole Wolfe

Week 2 Notes CJ 342

Nicole Wolfe

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About this Document

These notes include the 2nd half of Chapter 15 notes
Criminal Procedure
Kristi Venhuizen
Class Notes
Criminal Justice
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This 5 page Class Notes was uploaded by Nicole Wolfe on Thursday February 4, 2016. The Class Notes belongs to CJ 342 at University of North Dakota taught by Kristi Venhuizen in Spring 2016. Since its upload, it has received 63 views. For similar materials see Criminal Procedure in Criminal Justice at University of North Dakota.

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Date Created: 02/04/16
Chapter 15-Part 2 Exceptions to the Warrant Requirement 1. Plain view 2. Exigent Circumstances 3. Search incident to arrest 4. Automobile  Plain view o 3 prongs pursuant to Coolidge v New Hampshire, 403 U.S. 443 (1971)  The officer has legal justification to be in constitutionally protected area when the seizure occurs  1 prong - lawful access  Police must be in a lawful vantage point when they see the evidence in order to seize it  4 ways to have a lawful vantage point: o Warrant search o Valid arrest o Warrantless search based on probable cause o Nonsearches  2 prong – plain view  3 prong – immediately apparent  Means the police has probable cause to seize the evidence  Police do not need to be absolutely certain that the object is subject to seizure  Exigent circumstances o Law recognizes that law enforcement don’t always have time to obtain a search warrant o 3 types of emergencies  Hot pursuit  Likelihood of escape or danger to others absent hot pursuit  Evanescent evidence o Still requires probable cause o Hot pursuit  Police may pursue the suspect into protected space  Do not have to halt an investigation that could potentially endanger people’s lives  5 limits to hot pursuit:  Police must have reasonable suspicion the person they are chasing committed a crime and is on the premises  Police must have reasonable suspicion the person will escape or harm will occur if not apprehended  Police must begin from lawful starting point  Doctrine only applies to serious offenses  Generally, the scope of the search can be broad o Likelihood of escape or endangerment to others:  Police must have a reasonable basis to believe the occupant is seriously injured or threatened with such injury  Ex: Brigham City v Stuart, 547 U.S. 398 (2006) – police entered the home after observing one of 4 adults hit a juvenile o Preservation of evidence  Evanescent – evidence that might be lost or destroyed  Reasonable belief that evidence will be destroyed  Does not apply to relatively minor offenses  3 requirements  No time to obtain a warrant – must be immediate  Clear indication the search will result in obtaining evidence  Search is conducted in a reasonable manner  Search incident to lawful arrest o Allows police to disarm an arrestee and preserve evidence  Must be taken into custody  Probable cause to arrest must precede the search o Police can search the body of the arrestee and the area within that person’s immediate control (lunge)  Chimel v California, 395 U.S. 752 (1969) o Protective sweeps of dwellings  Searches of motor vehicles o Carroll Doctrine – Carroll v U.S., 267 U.S. 132 (1925)  Probable cause that the vehicle contains evidence of a crime  Securing a warrant is impractical o Rationale:  Inherent mobility of vehicles  Reasonable expectation of a privacy is smaller  Driving is a privilege, not a right o 3 requirements  Only applies to automobiles  Searches must be premised on probable cause  Impractical to obtain a warrant  Can search closed containers located in the vehicle and passenger belongings if probable cause of a crime  U.S. v Ross, 456 U.S. 798 (1982)  Can search closed containers and passengers contemporaneous to an arrest  New York v Belton, 453 U.S. 454 (1981)  Can search a vehicle contemporaneous to arrest if arrestee is within reaching distance or reasonably believe the vehicle contains evidence of the offense of arrest  Arizona V Gant, 556 U.S. 332 (2009) o Limits Belton o Actions sanctioned by a traffic stop  Maryland v Wilson, 519 U.S. 408 (1997) – officer can order a person to stand outside vehicle  Michigan v Long, 463 U.S. 1032 (1982) – frisk the driver and/or search the passenger compartment for safety reasons  Miranda v Arizona, 384 U.S. 436 (1966) – do not need to provide Miranda for routine questions with a traffic stop Exceptions to probable cause requirement  Stop and frisk o Terry v Ohio, 392 U.S. 1 (1968) o Law enforcement technique for police officer to stop, question, and sometimes search suspicious people o Limited pat down for officer safety – search for weapons only o Reasonable suspicion standard to stop and to frisk o A stop always precedes a frisk but does not always give rise to a frisk  Must have separate reasonable suspicion that person is armed and dangerous o Stop – detention of someone for investigation  4 amendment only applied when an officer by show of authority restrains a person’s liberty  Reasonable person does not feel free to leave  Court must consider all circumstances surrounding the encounter  Duration of stop – no bright line rule  Based on 3 factors: o Public interest served by the seizure o Nature and scope of the intrusion o Objective facts the officer relied on in light of his knowledge and expertise  “Free to leave” o Stop doesn’t take place when a person believes they are free to leave o Leaving during the course of conversation could be risky endeavor  Person could think they are free to go when they actually don’t-this could lead to a lot of trouble for that person o Frisk – superficial examination by an officer if the person’s body surface or clothing to discover weapons or items that could cause harm  Need reasonable suspicion the person is armed and dangerous  Can only reach into a garment if feel something that resembles a weapon  Cannot use a frisk as a fishing expedition (a method to find evidence for a crime)  Can seize contraband found in plain view during a pat down  Michigan v Long, 463 U.S. 1032 (1983)  Police can seize contraband detected through their sense of touch – “plain feel” exception  Minnesota v Dickerson, 508 U.S. 366 (1993)  Vehicle stops – officer must have a reasonable and articulable suspicion that a law is being violated  Drug courier profiles – not enough to satisfy reasonable suspicion o Area of law that is developing and changing  School searches o Students do not lose their constitutional rights at the school house door o Searches are to be judged by the reasonableness standard, not probable cause o Generally upheld if the search is reasonably related to the objectives of the search and not excessively intrusive  Drug testing o Permit supervisory personnel to order urinalysis testing of public safety officers, railroad employees involved in train accidents, customs inspectors, and student athletes o Higher level of scrutiny when the administrative search results are forwarded to law enforcement  NDCC 29-29-21 Electronic Surveillance  Issue is whether the methods infringe on a person’s reasonable expectation of privacy o Supreme Court ruled that there is no expectation of privacy with cordless and cellular phones o Use of pen registers (phone logs) is not a search o High altitude photograph is not a search o Thermal imagers are a search  Omnibus Crime Control and Safe Streets Act of 1968 o Interception of electronic communications is okay as long as one party consents o Allows wiretap orders for certain enumerated crimes  USA PATRIOT ACT – expands the government’s power to conduct electronic surveillance o Reauthorizing Amendments Act of 2006 Exclusionary Rule  Judicially created rule that prohibits the use of illegally obtained evidence in a criminal prosecution of the person whose rights were violated by the police in obtaining that evidence  Evidence obtained through an unlawful search and seizure cannot be used o Weeks v U.S., 232 U.S. 383 (1914)  Purpose was to deter illegal searches and seizures by the police in order to enforce constitutional requirements th  Made applicable to the states under the 14 amendment o Mapp v Ohio, 367 U.S. 632 (1961)  Applies to all constitutional provisions that govern law enforcement efforts to secure evidence including the 4 , 5 , 6 , and 14 amendments  Good faith exception: o Evidence obtained through a search warrant that is later held to be invalid may still be admitted as evidence at trial if the police who conducted the search relied on the warrant in “good faith”  Applies to searches conducted pursuant to statutes that are later determined to be unconstitutional o Doesn’t apply to the following:  If the magistrate was mislead by the affidavit  Magistrate abandons judicial role  Affidavit lacks probable cause  Warrant is facially deficient (missing requirements)  Impeachment exception o Prosecution can seek to use illegally seized evidence for the purpose of impeaching a witness o Applies only to criminal defendants, not other witnesses o Evidence used to impeach the witness not evidence used as evidence of the crime  Must have standing to invoke the exclusionary rule: o Automatic standing to anyone who was legitimately on the premises searched o Doesn’t apply to passengers of an automobile (can challenge the search/seizure but not the stop) o Must have a possessory or legitimate privacy interest in the place that was searched (i.e. luggage, purse, etc. at someone else’s house) o For person not on the premises  Fruit of the poisonous tree doctrine – holds that evidence derived from other evidence that is obtained through and illegal search or seizure is itself inadmissible o Three exceptions:  Purged taint  Independent source  Inevitable discovery o Example: If a police officer stops a car and the driver has an odor of alcohol along with bloodshot eyes and the 3 other boys in the car admit to being drunk and the officer gives the driver a DUI. Later in court the judge rules that the stop was bad which means all of the other evidence taken from the stop can no longer be used and the driver goes free without receiving a DUI. o Purged taint:  Question whether the derivative evidence was obtained by exploitation of the initial unconstitutional act or instead by other means that are purged of the primary taint o Independent source:  Evidence later discovered during a valid search that is wholly independent of the initial illegal search o Inevitable discovery:  Evidence would be found regardless of unconstitutional police conduct


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